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Shakespeare as a Lawyer 



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HON. HAMPTON LTCARSON 

PHILADELPHIA, PA. 






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Annual Address, Delivered Before the Twentieth Annual Meeting 

of the i^tate Bar Association ef Indiana, held at Lafayette, 

Indians, July 12 and 13, 1916. 



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' 



LL 
IV 17. *<\ 







ANNUAL ADDRESS. 

-THE LAW IN SHAKESPEARE." 

Hon. Hampton L. Carson, Philadelphia. 

When I was last in London, I picked up a little brochure 
of 90 pages, at a bookstall, printed in 1690, containing an 
account of the flourishing province of Pennsylvania, at that 
time consisting chiefly of the city of Philadelphia, then a 
town of 2,000 people, and, after speaking of butchers, 
bakers, brewers, carpenters, bricklayers, masons, jewelers 
and shoemakers, the author said, "Of doctors and lawyers, 
I can say nothing, because the place is very peaceful and 
healthy," and then he added this pious prayer, "Long may 
we be exempt from the pestiferous drugs of the one, and 
the abominable loquacity of the other." Now, I am not 
going to revenge myself on you for that somewhat dis- 
criminating remark. 

I am going to take the plays of Richard II, "Hamlet," 
and "The Merchant of Venice," and discuss some of their 
legal phases. We all know that there is quite a literature 
on the subject of Shakespeare as a lawyer. Lord Camp- 
bell, the author of the "Lives of the Lord Chancellors and 
Lord Chief Justices of England," wrote somewhat on the 
subject. Mr. Franklin Fiske Heard, of Boston, published 
a book; Sir Robert Phillimore, a profound student of the 
civil law and one of the judges of England, also published 
a book; and Mr. White, late president of the Missouri Bar 
Association, has published quite a voluminous book. But 
none of these writers has taken one of the plays of Shake- 
speare and analyzed it, so as to disclose the sources from 



which he obtained his information, by attempting to tie 
up the legal literature of the day with Shakespeare's plays. 
They seem to content themselves with whether or not he 
used legal phraseology with accuracy, or whether he wan- 
dered in the courts at Westminster and worked up the 
knowledge of which he seemed to be a master. Of course, I 
can do nothing more than simply indicate to you what these 
plays suggest, and how they are connected with English 
legal history. 

Richard II was a very interesting character. He was a 
son of the famous Black Prince. He had all the heroic 
courage of the house of Plantagenet, and he did not hesitate 
to quell a rebellion by boldly riding out alone into the midst 
of the forces led by Wat Tyler, denouncing him with the 
cry: "Wat Tyler is a traitor; I will be your leader." His 
intellectual qualities were of the very highest order, but he 
had an intensely autocratic disposition and a strong ten- 
dency to rule arbitrarily, and that proved his downfall. He 
was driven from the throne, as you recall, by Henry Here- 
ford, a son of old John of Gaunt of Lancaster, better known 
as Bolingbroke, who succeeded Richard under the 
name of Henry IV. In the play of Richard II, Shapespeare 
has set the scenes of a trial by battle as the Normans knew 
it, on an appeal or accusation of high treason brought by 
Bolingbroke against Thomas Mowbray, Duke of Norfolk. 

In order that the ladies, who can scarcely be expected 
to know what lawyers know technically, should understand 
what is meant by a trial by battle, let me briefly sketch the 
methods of trial that were known prior to the time of 
Shakespeare, who wrote, as you all remember, in the latter 
part of the reign of Elizabeth and in the early years of 
James I. In the Anglo-Saxon times the methods of trial 



were by the ordeal either by fire or by water. A man accused 
of crime, who was subjected to the ordeal by fire, had to 
plunge his arm into boiling water. If his offense was a 
slight one, only to the extent of his wrist ; if a serious one, 
to the extent of his shoulder, and, after keeping his arm 
in this hot water for the space of five minutes it was with- 
drawn and bandaged. After three days the bandages were 
removed. If there were any signs of scalding or blistering, 
he was guilty; if there were no traces of scalding, he was 
innocent. 

Another method of the test by fire was walking over 
redhot plowshares with bare feet, and if the feet were not 
blistered in contact with the hot iron, he was innocent ; 
if they were blistered, he was guilty. 

The test by water was where a man accused of crime 
was tied into a double yoke, so to speak, his wrists being 
bound to his ankles, and he was tossed into a deep stream. 
If he sank he was guilty ; if he floated he was innocent. 

The principle which underlay these tests of truth was 
the belief that the Almighty would work a miracle in be- 
half of innocence ; that the ordinary physical consequences 
would not follow if the accused were innocent. 

Now, after the coming of the war-loving Normans, it 
took two centuries to get rid of this method of trial. The 
last instance, I believe, of the trial by ordeal took place 
in the reign of John, about the time of Magna Charta. 
About the year 1215 there was introduced the military test 
of trial by battle, in order to determine the truth of a 
cause, and they used it not only in criminal trials, but also 
in civil trials, so that even title to land was determined by 
the prowess of the opponents ; the theory being that God 
would crown a just cause with victory. 



What we now know as trial by jury came in about the 
time of Henry VI. By that time the Saxon ordeal had en- 
tirely disappeared and the Norman trial by battle had been 
largely discontinued. But the play of Richard II indicates 
that trial by battle occasionally recurred and also shows us 
how much Shakespeare was impressed by it. In the reign 
of Elizabeth, in Sir James Dyer's Reports, you will find a 
case where a trial by battle was held in Tothill fields, West- 
minster, and which action is the first appearing in books 
under the name of the reporter — the Year Books being 
prior to that time. In Dyer there is recorded an actual 
instance of a trial by battle according to strict Norman 
ceremony, recurring after lying submerged or somnolent 
for nearly two hundred years. Of course, the reappearance 
of the ceremony was strange and attracted much attention. 
It occurred only ten years before Shakespeare wrote the 
play; therefore it was a matter of common talk and he 
was impressed by it. Stranger still, this form of trial, 
which again sank out of sight, was revived in the reign of 
William IV. The plaintiff claimed his right to support his 
claim by battle and the Lord Chief Justice ruled that the 
right was not obsolete, and it finally required an act of 
Parliament to abolish it. 

Such being a general view of the matter, I looked into 
old books for some general account of what the ceremony 
in the Norman trial by battle really was, and I traced it 
to an old book which was written in the reign of Edward 
I, about the year 1285, by an author named Britton. I 
had the good fortune some years ago to purchase a manu- 
script containing the entire work, a manuscript of the early 
fourteenth century. Of course, that was long before the 
invention of printing, but, instead of bringing the manu- 



script, I thought that it would be more interesting to you 
to show you a specimen of legal printing in the time of 
Shakespeare, and so I have brought a copy of that manu- 
script as printed in the year 1602, in the same kind of type 
as was used in Shakespeare's plays. (Here is the book.) 
In the twenty-third chapter of this treatise there is a full 
description of the Norman ceremony of an appeal or trial 
by battle in a criminal case. This book is also interesting 
because it is the first treatise that was ever composed on a 
legal subject in Norman-French. Prior to that time all 
the manuscripts had been in Latin. This book is written 
in Norman-French, and the Norman-French at this early 
period is very pure and can be readily understood by one 
who reads French today. As the translating of the text 
at sight would be somewhat tedious, I shall read a few 
passages from Mr. Nichols' admirable translation of the 
book. Bear in mind how the ceremony is described. Then 
bear in mind that this ceremony was revived in the Com- 
mon Pleas of England and reported by the Lord Chief 
Justice of England just ten years before Shakespeare wrote 
his play. Then you will see how closely he follows the 
detail in the play of Richard II. 



Britton. Chapter XXIII. Of Appeals. 

"Having in part treated of the articles provided for our 
eyres, 1 by which we desire to punish evildoers and to con- 
vict the wickedness of people at our own suit, we will now 
set forth how felonies and crimes may be punished at the 



1 Eyres. — The itineraries of the judges who went out on the circuit to 
hold the assizes of the jury trials instead of holding them at Westminster, — 
Magna Charta having changed the old system. 



suit of others ; and first of appeals. 2 An appeal is a plaint 
brought by one person against another in a set form of 
words with intent to convict him of felony. Not every 
man, however, can be an appealor ; for neither an outlawed 
person, nor one who has abjured our realm, or has been 
sentenced to death in our court, nor an approver who has 
failed of his proof, nor an infant under the age of fourteen 
years, nor a madman, nor an idiot, nor one deaf, or dumb, 
nor a leper expelled from common society, nor a person in 
holy orders, is to be admitted in appeals; yet they may 
accuse our mortal enemies abiding within our domains. 

"There are some felonies which concern our suit, 3 and 
may be prosecuted for us and not by us, as against our 
mortal enemies, and for counterfeiting our seal and our 
coin; and there are some which concern the suit of others 
and not ourselves. * * * 

"First we must treat of appeals of felonies which may 
be brought for us, and not by us ; as of treason and a com- 
passing designed against our person, to put us, or our con- 
sort, or our father, or our mother, or our children, to death, 
or to disinherit us of our kingdom, or to betray our host, 
although such compassing be not put in execution. Of 
which compassing, our will is, that the accusation be laid 
before ourselves. * * * 

"When any person shall offer to prove this crime against 
one or more, we will cause the body of the accused to be 
immediately apprehended and brought before us. And 
when they appear for trial, let the accuser make his appeal 
for us by some serjeant in this manner. 'John who is here 
appeals Peter who is there of this, that being in such a 
place and on such a day and year, the same John there 



2 Appeals. — An appeal, in the Norman sense, is an accusation. A man 
who appealed another of crime accused him of crime. The accuser was called 
the appellant, and the accused was called the appellee. Shakespeare was 
posted on these definitions as shown by the dialogue between Mowbray and 
Bolingbroke. 

3 Our Suit. — This is spoken by the King. The whole treatise is in the 
name of the King and purports to be written and published by his authority. 



heard such a death or such a treason contrived between 

the same Peter and another, such as one by name, and by 

such confederacies; and that the said Peter thus acted, 

and thus contrived feloniously as a felon and traitorously 

as a traitor, he the same John is ready to prove by his body, 

in any manner the court shall award that he ought to prove 
jf » * * * 

"And our will is, that if the appeal be pronounced by 
the mouth of a Serjeant, and be abated on account of its 
being ill set forth, or through other default of the serjeant, 
who ought to understand the art of pleading, the serjeant 
himself should be amerced 4 one hundred shillings; and if 
there was secret malice in the act, and he be convicted 
thereof, then let him be sent to prison, and suspended from 
his office. 

"And as to the defense, the appellee may defend himself 
in this manner. 'Peter who is here defendeth all the fel- 
onies, and all the treasons, and contrivances, and compass- 
ings of mischief against the person' of such a one, or such 
an one, according as he is charged, word by word. 5 And 
we will that in these appeals, it shall be more necessary for 
the appellor to set forth the words orderly without any 
omission, that his appeal may stand, than for the defendant 
in his defense ; and in every felony we allow the felony to 
defend the words of the felony generally, without treating 
him as an undefended, so that for default of a word or 
syllable he be not adjudged undefended, but it shall be 
sufficient for him to say, that he is not guilty of such felony 
as the appellor lays to his charge, and that he is ready to 
defend the same against him by his body, in such manner 
as the court shall award that he ought to do it, or by the 
country. * * * 



* Amerced. — I wonder if that wouldn't be a good suggestion for the 
consideration of the Committee on Remedial Procedure, that the man who 
did not understand procedure should be amerced. 

5 In other words the denial ought to follow exactly the language of the 
appeal or accusation. 



"The appellee, having sufficiently defended the substance 
of the appeal, may then aid himself by exceptions, and first 
to the jurisdiction of the judge, afterwards to the person 
of the appellor, then to his own person, and next to the 
appeal, and lastly to the action, as shall be mentioned 
amongst exceptions. With respect to the jurisdiction, he 
may say, that he is not bound to answer in a place where 
the judge is a party, since in every judgment there ought 
not to be less than three persons, to wit, a judge, a plaintiff, 
and a defendant; and in cases where we are party, our 
pleasure is, that our Court, to wit, the earls and barons in 
time of parliament, shall be judges. The jurisdiction of 
the judge being established, he should consider whether he 
can aid himself by excepting either to the person of the 
plaintiff or to his own person; and next in abatement of 
the appeal, which may occur in many cases, as by omitting 
to name in the appeal the year, day, or place, or naming 
one name instead of another, or setting forth the appeal 
thus, 'This showeth unto you John', where he ought to say, 
'John appeals'; or by closing his appeal by these words, 
'and this I will aver', instead of saying, 'this I offer to 
prove', or for variance, the appeal being made before the 
Justices in one form and in the coroner's vill in another. 

"If he can by any exception abate the appeal, then our 
will is that he be acquitted as against this appellor, and the 
appellor shall be committed to prison, because he has failed 
to prove that he bound himself to prove ; and so it shall be 
in all appeals of felony, and also where the appellor with- 
draws himself from his appeal before judgment; and his 
pledges to prosecute shall also be in our mercy, because 
they have failed in their engagement. But in these cases 
we will that moderation be used, in as much as such per- 
sons proffer themselves to fight in maintenance of our 
peace. 

"But though it happen that the appellees are thus ac- 
quitted as against the plaintiff, it does not therefore follow 
that they are not guilty of what is laid to their charge; 



wherefore in such cases let it be immediately demanded of 
them on our behalf, how they will acquit themselves of such 
slander; and if they say by the country, then they shall be 
remanded to prison until a certain day, and in the mean- 
time the country shall be summoned, and according to the 
verdict of the country charged thereon, judgment shall be 
given. 

"If the defendant cannot abate the appeal, then it shall 
be in his election, whether he will defend himself by his 
body or by the country. And if he says, by his body, and 
it be in the case of felony at the prosecution of another, 
then let the matter be examined before battle is joined, 
whether the cause be trespass or felony. * * . • * 

"When they appear armed in court, let the plaintiff re- 
peat his appeal word for word, as he did before, and the 
defendant defend himself as before; and afterwards let 
them take each other by the hand, and let the defendant 
swear first in this manner, and the appellor afterwards as 
shall be presently more fully set forth. 'Hear this, you 
man whom I hold by the hand, who call yourself John by 
your name of baptism, that I, Peter, did not in such a year, 
nor such a day, nor in such a place, compass or propose 
the death aforesaid, nor did assent to such felony as you 
have charged me with, so help me God and the Saints/ 
Afterwards the appellor shall swear thus. 'Hear this, 
you man whom I hold by the hand, who call yourself Peter 
by your name of baptism, that you are perjured, in as much 
as on such a day, in such a year, and in such a place, you 
did propose such a treason or such a death as I have said 
against you in the appeal, so help me God and the Saints.' 

"Then let them both be brought to a place appointed 
for that purpose, where they must swear thus. 'Hear this, 
ye Justices, that I John (or I Peter), have neither eaten 
nor drunk anything, nor done or caused to be done for me 
any other thing, whereby the law of God may be abased, and 
the law of the devil advanced or exalted.' And thus let 
it be done in all battles in appeals of felony. And let 



proclamation be immediately made, that no one, except the 
combatants, whatever thing he see or hear, be so bold as 
to stir, or cry aloud, whereby the battle may be disturbed ; 
and whosoever disobeys the proclamation shall be im- 
prisoned a year and a day. 

"Next, let them go to combat, armed without iron and 
without the slightest armour, their heads uncovered, their 
hands and feet bare, with two staves tipped with horn of 
equal length, and each of them a target of four corners, 
without any other arms, whereby either of them may annoy 
the other; and if either of them have any other arms con- 
cealed about him, and therewith annoy or offer to annoy 
his adversary, let it be done as shall be mentioned in 
treating of battle in a plea of land. 

"If the defendant can defend himself until the stars 
can be seen in the firmament, and demands judgment 
whether he ought to combat any longer, our will is, that 
judgment pass for the defendant, and so in all battles be- 
tween champions; and in the case of felony the appellor 
shall be committed to prison. And if the defendant will 
confess the felony before he is otherwise attainted, and 
appeal others of consenting to the same, we allow him to 
be admitted thereto. 

"And if the defendant be vanquished, let the judgment 
be this, that he be drawn and hanged, or put to such other 
painful death as we shall direct, and that all his movable 
goods be ours, and his heirs disinherited; and his children 
shall be incapable of ever holding land in our realm.* * *" 

There is the ceremony, given in great detail, with a very 
nice consideration of the technical questions of pleading, 
such as exceptions to jurisdiction, and of various personal 
objections which might be taken to the person of the ac- 
cuser, stated clearly in this book written about the year 
1285, and first printed in 1602, a copy of which I have 
brought, because it is of Shakespeare's time. 



Now, with what I have read in mind, let us turn to the 
play of Richard II, and see what use Shakespeare makes of 
this material. The first scene of Act I is laid in the king's 
palace. Richard is the first speaker, and says for greeting : 

''Old John of Gaunt, tinie-honour'd Lancaster, 
Hast thou, according to thy oath and band, 
Brought hither Henry Hereford, thy bold son, 
Here to make good the boisterous late appeal, 1 
Which then our leisure would not let us hear, 
Against the Duke of Norfolk, Thomas Mowbray? 

Gaunt : 

I have, my liege. 

King Richard : 

Tell me. moreover, hast thou sounded him. 
If he appeal the duke of ancient malice, 
Or worthily, as a good subject should, 
On some known ground of treachery in him? 

Gaunt : 

As near as I could sift him on that argument, 
On some apparent danger seen in him 
Aint'd at your highness, no inveterate malice. 

King Richard : 

Then call him to our presence; face to face. 
And frowning brow to brow, ourselves will hear 
The accuser and the accused freely speak:" 

Then enter Bolingbroke and Mowbray. They both pro- 
test their loyalty to the king in terms which I need not 
repeat. The King, however, rather disconcerts them when 
he says: 

"We thank you both; yet one but flatters us, 
As well appeareth by the cause you come; 
Namely, to appeal each other of high treason. 
Cousin of Hereford, what dost thou object 
Against the Duke of Norfolk, Thomas Mowbray?" 



1 Accusation. 



Bolingbroke appeals to Heaven. Then he says: 

"Come, I appellant to this princely presence. 
Now, Thomas Mowbray, do I turn to thee, 
And mark my greetings well : for what I speak 
My body shall make good upon this earth, 
Or my divine soul answer it in heaven. 
Thou art a traitor and a miscreant; 
Too good to be so and too bad to live." 

That arouses naturally the indignation of Mowbray and 
he said : 

"Let not my cold words here accuse my zeal : 
'Tis not the trial of a woman's war, 
The bitter clamour of two eager tongues, 
Can arbitrate this cause betwixt us twain ; 
The blood is hot that must be cool'd for this :" 

Then he is going to take an exception. He cannot com- 
pete equally, and so he restrains himself in answer, be- 
cause Bolingbroke has royal blood in his veins and there- 
fore stands in higher position than Mowbray. Turning 
to the king, he said: 

"First, the fair reverence of your highness curbs me 
From giving reins and spurs to my free speech ; 
Which else would post, until it had return'd 
These terms of treason doubled down his throat." 

Then, appealing to the king, he says: 

"Setting aside his high blood's royalty, 
And let him be no kinsman to my liege, 
I do defy him, and I spit at him; 
Call him a slanderous coward and a villain : 
Which to maintain, I would allow him odds, 
And meet him, were I tied to run afoot 
Even to the frozen ridges of the Alps." 

Then Bolingbroke, voluntarily disclaiming privilege, 
rfays: 






'Tale trembling coward, there I throw my gage, 
Disclaiming here the kindred of the king. 
And lay aside my high blood's royalty. 
Which fear, not reverence, makes thee to except. 
If guilty dread have left thee so much strength 
As to take up my honour's pawn, then stoop :" 

Mowbray instantly says: 

"I take it up, and by that sword I swear, 
Which gently laid my knighthood on my shoulder. 
I'll answer thee in any fair degree. 
Or chivalrous design of knightly trial ; 
And when I mount, alive may I not light, 
If I be traitor or unjustly fight!" 

Then Richard asks: 

"What doth our cousin lay to Mowbray's charge?" 

He is asking now for what we would call the particulars 
of the accusation, or what we, of course, know as the indict- 
ment. 

''What dost our cousin lay to Mowbray's charge?" 
It must be great that can inherit us 
So much as of a thought of ill in him." 

Then Bolingbroke says : 
"Look, what I speak, my life shall prove it true:" 

He makes two distinct charges; that Mowbray received 
eight, thousand pounds of the King's money, and squandered 
it; that he entered into a treasonable conspiracy to put the 
Duke of Gloucester to death. 

The King says : 

"How high a pitch his resolution soars! — 
Thomas of Norfolk, what sny'st thou to this?" 

Mowbray : 

"O ! let my sovereign turn away his face 
And bid his ears a little while be deaf. 
Till I have told this slander of his blood 
How God and good men hate so foul a liar." 



King Richard : 

"Mowbray, impartial are our eyes and ears; 
Were he my brother, nay, our kingdom's heir, 
(As he is but my father's brother's son,) 
Now by my sceptre's awe I make a vow. 
Such neighbor nearness to our sacred blood 
Should nothing privilege him, nor partial ize 
The unstooping firmness of my upright soul. 
He is our subject, Mowbray ; so art thou : 
Free speech and fearless I to thee allow." 

There we have the exception overruled and the parties 
are declared to stand on an equality. Mowbray then turns 
to Bolingbroke and says : 

"Then, Bolinbroke, as low as to thy heart, 
Through the false passage of thy throat, thou liest ! 
Three parts of that receipt I had for Calais 
Disbursed I duly to his highness' soldiers; 
The other part reserved I by consent ; 
For that my sovereign liege was in my debt, 
Upon remainder of a dear account 
Since last I went to France to fetch his queen. 
Now swallow down that lie. For Gloucester's death, 
I slew him not; but to. mine own disgrace 
Neglected my sworn duty in that case. 
For you, my noble Lord of Lancaster, 
The honourable father to my foe, 
Once did I lay an ambush for your life. 
A trespass that doth vex my grieved soul ; 
But, ere I last received the sacrament 
I did confess it ; and exactly begg'd 
Your grace's pardon, and. I hope, I had it. 
This is my fault : as for the rest appeal'd, 
It issues from the rancour of a villain. 
A recreant and most degenerate traitor ; 
Which in myself I boldly will defend. 
And interchangeably hurl down my gage 
Upon this overweening traitor's foot, 
To prove myself a loyal gentleman 
Even in the best blood chaniber'd in his bosom : 
In haste whereof, most heartily I pray 
Your highness to assign our trial day." 



King Richard : 

"Wrath-kindled gentleman, be ruled by me; 
Let's purge this choler without letting blood." 

Matters boiled too hot, however, and the king could not 
pacify the belligerents. Trial by battle was demanded. I 
pass the intermediate passages and come to Scene III on 
the field at Coventry, where the Lord Marshall and the 
Duke of Aumerle enter first. 

Mar. : 

"My Lord Aumerle, is Harry Hereford arm'd? 

Aum. : 

Yea, at all points, and longs to enter in. 

Mar. : 

The Duke of Norfolk, sprightfully and bold. 

Stays but the summons of the appellant's trumpet." 

The trumpets then sound, the king enters with his 
nobles. When they are seated in their places, Mowbray, 
the defendant, enters with the Herald. The king says to 
the Marshal: 

"Marshal, demand of yonder champion 
The cause of his arrival here in arms. 
Ask him his name." 

And the Marshal proceeds to swear him : 

"In God's name, and the king's, say who thou art, 
And why thou com'st thus knightly clad in arms. 
Against what man thou com'st, and what thy quarrel : 
Speak truly, on thine knighthood, and thine oath; 
As so defend thee heaven, and thy valour!" 

Mow: "My name is Thomas Mowbray, Duke of Norfolk: 
Who hither come engaged by my oath, 

(Which' heaven forfend a knight should violate) 
Both to defend my loyalty and truth 
To God, my king, and succeeding issue, 
Against the Duke of Hereford that appeals me; 



And. by the grace of God and this mine arm. 
To prove to him. in defending of myself, 
A traitor to my God, my king and me: 
And as I truly tight, defend me heaven!" 



Then Bolingbroke enters preceded by a herald in the 
same way, gives his name, repeats his accusation against 
Mowbray — a flourish of trumpets and the fight is on. They 
are both in armour because Shakespeare found it doubtless 
more dramatic to put them in armour, although in the cere- 
mony, as stated by Britton, they were to fight without any 
battle armour except the three-cornered shield. The battle 
continues until the king casts down his warder and puts 
an end to the combat. The Duke of Hereford is exiled for 
ten years and Mowbray for life. Hereford returns within 
the ten years, wages war against the king, and succeeds 
to the English throne under the name and title of Henry 
IV. The play graphically illustrates how an appeal or trial 
was conducted in the fifteenth century. 

I will now turn to Hamlet. It is generally stated, but 
very few undertake to look it up, that Shakespeare, in the 
grave-digger's scene, got from an English law book the 
humor of the talk between the two clowns, where they are 
discussing the question of suicide. I happened to buy, some 
fifteen years ago, a copy of Plowden's Reports — Edmund 
Plowden being a reporter in the reign of Queen Elizabeth 
— which had the inscription, "Nicholas Luttrell, 1766, His 
Book," written on the title page. It struck me as some- 
what singular that Luttrell, who was not a lawyer, but 
who collected books on poetry, should have been interested 
in law, until, in studying a case in Plowden's Reports, I 
came across the case of Hales v. Petit. The question turned 
entirely on a matter of pleading, in which a demurrer was 



filed to a special plea in answer to a declaration. Stripping 
the case of technicalities, I may say that the plaintiff was 
Elizabeth Hales, the widow of Sir James Hales, to whom 
a joint lease to himself and wife had been made by the 
Archbishop of Canterbury for the term of twelve years. 
At the end of six years James Hales died. The widow 
claimed by way of survivorship. On the supposition that 
the lease was forfeited, the estate was given by the Crown 
to Petit, who took possession of it. The widow Hales 
brought an action of trespass against the defendant Petit, 
for having taken this land by his patent. The declaration 
set forth the lease, the death of the husband, the widow's 
survivorship and the trespass, and then a plea was filed by 
way of confession and avoidance, by which the defendant 
admitted all that the plaintiff had asserted, and then set 
forth the suicide of Hales by way of avoidance. In effect, 
the defendant said: all that you allege is true, you were in 
under a lease from the Archbishop of Canterbury ; you and 
your husband were joint tenants, and your husband is 
dead ; but you have omitted to state that he committed sui- 
cide; that constituted a felony; a coroner's inquest took 
place, and when judgment was entered and a forfeiture 
was declared in favor of the crown, the crown took charge 
of the unexpired term of the lease and granted a new term 
to the defendant. That is a plain way of putting it. 

Now, I want you to follow the line of argument that 
was made on demurrer to that plea by way of confession 
and avoidance, and you will see how cleverly Shakespeare 
caught the humor of the situation. This is the argument 
of Serjeants Southcote and Puttrel for the plaintiff : 

"And they said that the Bar (Plea) was not good, and 



that it does not disclose sufficient Matter to devest the 
Term out of the Plaintiff, and to put it in the King and 
Queen. For first, the Bar conveys the Term of 12 years 
to the Plaintiff and to her Husband jointly, and it has 
shewn the Death of the Husband, which gives the Wife 
Title to have the whole Term as Survivor, and the Cause 
that seems to interrupt this Title (if there be any) is, for 
that the Husband drowned himself, and so was a felo de se. 
But this Cause shall not take away her Title of Survivor- 
ship, for in this Manner of Felony two Things are to be 
considered. First, the Cause of the Death ; secondly, the 
Death ensuing the Cause, and these two make the Felony, 
and without both of them first done, the Felony is not con- 
summate. The Cause of the Death is the Act done in the 
Party's Life-time, which makes the death to follow. And 
the Act which brought on the Death here, was the throwing 
himself voluntarily into the Water, for this was the Cause 
of his Death. And if a Man kills himself by a Wound, 
which he gives himself with a Knife, or if he hangs him- 
self, as the Wound or the Hanging, which is the Act done in 
the Party's Life-time, is the Cause of his Death, so is the 
throwing himself into the Water here. * * * 

But the King shall have no more than the felo de se has 
in his own Right, or which should have come to his Execu- 
tors if he had not been a felo de se. For his Forfeiture 
shall only have Relation to the Time of the Death, and the 
Death precedes the Forfeiture, for until the Death is fully 
consummate he is not a felo de se; for if he had killed an- 
other, he should not have been a Felon until the other had 
been dead. And for the same Reason he cannot be a felo 
de se until the Death of himself be fully had and consum- 
mate. For the Death precedes the Felony both in the one 
Case and in the other, and the Death precedes the For- 
feiture. * * * 

In like Manner here the Plaintiff's Title to the Lease is 
by the first Lessor, and she claims no more than that which 
she had in the Life of her Husband: so that her Title is 



paramount the Death of her Husband, and the Title of the 
King and Queen is paravail his Death, and therefore too 
late' * * *." 

Now listen to the argument on the other side: 

"On the contrary, it was argued by Walsh, Cholmly, 
Bendloe, and Carus, Serjeants, that the Forfeiture of the 
Goods and Chatties, real and personal, shall have Relation 
to the Act done in the Party's Life-time, which was the 
Cause of his Death; and upon this the Parts of the Act 
are to be considered. And Walsh said, that the Act con- 
sistes of three Parts. The first is the Imagination, which 
is a Reflection or Meditation of the Mind, whether or no 
it is convenient for him to destroy himself, and what Way 
it can be done. The second is the Resolution, which is a 
determination of the Mind to destroy himself, and to do it 
in this or that particular Way. The third is the Perfection, 
which is the Execution of what the Mind has resolved to 
do. And this Perfection consists of two Parts, viz., the 
Beginning and the End. The beginning is the doing of 
the Act which causes the Death, and the End is the Death, 
which is only a sequel to the Act. And of all the Parts 
the doing of the Act is the greatest in the Judgment of 
our law, and it is dn effect the whole, and the only 
Part that the law looks upon to be material. For the 
Imagination of the Mind to do Wrong, without an Act 
done, is not punishable in our Law, neither is the 
Resolution to do that Wrong, which he does not, pun- 
ishable, but the doing of the Act is the only Point 
which the Law regards ; for until the Act is done it cannot 
be an Offense to the World, and when the Act is done it 
is punishable. Then here the Act done by Sir James Hales, 
which is evil and the Cause of his Death, is the throwing 
of himself into the Water, and the Death is but a Sequel 
thereof, and this evil Act ought some way to be punished. 
And if the Forfeiture shall not have Relation to the doing 



of the Act, then the Act shall not v be punished at all, for 
in as much as the Person who did the Act is dead, his Per- 
son cannot be punished, and therefore there is no Way else 
to punish him but by Forfeiture of those Things which 
were his own at the Time of the Act done, and the Act 
was done in his Life-time, and therefore the Forfeiture 
shall have Relation to his Life-time, viz., to that time of 
his Life in which he did the Act that took away his life." 

Now, here is what Lord Chief Justice Dyer, in deciding, 
said: 

"Five Things are to be considered in this Case. First, 
the quality of the Offense of Sir James Hales; secondly, 
to whom the Offense is committed; thirdly, what shall he 
forfeit; fourthly, from what Time the Forfeiture shall 
commence; and, fifthly, if the term here shall be taken 
from the Wife. * * *" 

I shall dwell only upon the Fourth point, which is the 
important one: 

"To what Time the Forfeiture shall have Relation ; they 
said that the Forfeiture here shall have Relation to the 
Time of the original Offense committed, which was the 
Cause of the Death, and that was the throwing himself 
into the Water, which was done in his Life-time, and this 
Act was Felony. And the Indictment says, and may say, 
that he feloniously threw himself into the water; for that 
which caused the Death may be said to be feloniously done. 
And therefore if one strikes another, so that afterwards 
he dies of it, the Indictment ought to say that he struck 
him feloniously. So that the Felony is attributed to the 
Act, which Act is always done by a living Man and in his 
Life-time, as Brown said; for, he said, Sir James Hales 
was dead, and how came he to his Death? It may be 
answered by drowning; and who drowned him? Sir James 
Hales; and when did he drown him? In his Life-time, 



So that Sir James Hales being alive caused Sir James 
Hales to die ; and the Act of the living Man was the Death 
of the dead Man. And then for this Offense it is reasonable 
to punish the living Man who committed the Offense, and - 
not the dead Man. But how can he be said to be punished 
alive when the Punishment comes after his Death? Sir, 
this can be done no other Way but by devesting out of him, 
from the Time of the Act done in his Life which was the 
Cause of his Death, the Title and Property of those Things 
which he had in his Life-time." 

Now, turn to Shakespeare's text: "Act V. Scene I, A 
Churchyard. Enter two clowns with spades." You will 
recall that the suicide spoken of is Ophelia. 

First Clown : 

"Is she to be buried in Christian burial that wilfully seeks her 
own salvation? 

Second Clown: 

I tell thee she is: and therefore make her grave straight, the 
crowner hath sat on her and finds it Christian burial 

First Clown : 

How can that be unless she drowned herself in her own defence? 

Second Clown : 

Why, 'tis found so. 

First Clown : 

It must be \se offendendo' : it cannot be else. For here lies the 
point: if I drown myself wittingly, it argues an act: and an 
act hath three brauches: it is to act, to do, to perform : argal. 
she drowned herself wittingly. 

Second Clown : 

Nay. but hear you, good man delver — 

First Clown : 

(Jive me leave. Here lies the water; good: If the man go to 
this water and drown himself, it is. will he nill he, he goes. — 
Mark you that: but if the water come to him and drown him. 



he drowns not himself: argal, he that is not guilty of his own 
death shortens not his own life. 

Second Clown: 
But is this law? 

First Clown : 

Ay, marry, is't ; crowner's quest law.*' 

I think Shakespeare made pretty good use of that old 
case. 

I now take the Merchant of Venice. I do so for the 
purposes of contrast. The two preceding plays show 
Shakespeare's application of the law as it was. The Mer- 
chant of Venice shows Shakespeare's complete ignorance 
of the law, or a playwriter's contemptuous disregard of it. 
It is a play which has attracted much attention. I do not 
intend to dwell on the plot. I am not quite sure that there 
is a plot. It is classified as a comedy, though the humor of 
the piece seems to turn on a clever trick that two wives 
attempt to play with regard to their wedding rings in order 
to test their husbands' fidelity, but Shakespeare, in his 
intense desire to hold the Jew, Shylock, up to odium, per- 
petrates many violations of the law which constitute a 
series of perpetual shocks to lawyers from end to end. It 
is the most atrocious travesty of the law that one could 
possibly find. I want you to follow the piece closely, and 
see the line of argument employed. 

Bassanio, a bold blade, who is very much in love with 
Portia, like a great many other lovers, is hard up, and he 
goes to his friend, Antonio, who is a rich man, and asks 
him to lend him some money, so as to enable him to prose- 
cute his suit respectably. 

Bassanio says : 



"In Belmont is a lady richly left, 
And she is fair, and, fairer than that word. 
Of wond'rous virtues. 
Her name is Portia. 
O, my Antonio, had I but the means 
To hold a rival place with one of them, 
I have a mind presages me such thrift, 
That I should questionless be fortunate." 

Then Antonio says : 

"Thou know'st that all my fortunes are at sea ; 
Neither have I money, nor commodity 
To raise a present sum ; therefore go forth ; 
Try what my credit can in Venice do." 

Now, I want you to observe, right at the start, that 
Bassanio is asking Antonio for a loan. It is Bassanio's 
debt. Antonio is simply going to lend his credit for the 
accommodation of his friend. Has Shylock notice of that 
situation or not? You will find that he has, because the 
answer to that request is that Bassanio should go out and 
find a lender. Bassanio goes out and meets Shylock and 
asks him for money, and this conversation takes place : 

Shylock : 

"Three thousand ducats, — well. 

Bassanio : 

Ay, sir, for three months. 

Shylock : 

For three months, — well. 

Bassanio : 

For the which, as I told you, Antonio shall be bound. 

Shylock : 

Antonio shall become bound, — well. 

Bassanio : 

May you stead me? Will you pleasure me, Shall I know your 
answer? 



Shylock : 

Three thousand ducats, for three mouths, and Antonio bound. 

Bassanio : 

Your answer to that. 

Shylock : 

Antonio is a good man. 

Bassanio : 

HaA T e you heard any imputation to the contrary? 

Shylock : 

Oh, no, no. no. no, — my meaning in saying he is a good man, is. 
to have you understand me, that he is sufficient; yet his means 
are in supposition." 

Now, there observe that it is Bassanio asking Shylock 
to take Antonio for Bassanio's debt, and questioning him 
as to whether he considers Antonio a sufficient surety. 
Shylock hesitates about the question and about the time, and 
when pressed for an answer, says, Oh, yes, he is "a good 
man." 

He then locates in every part, of the seas where An- 
tonio's argosies are afloat. Shylock knew perfectly well the 
character and substance of the man who is to become his 
debtor. Then, after reflection, he says : 

"Three thousand ducati. 
I think I may take his bond. 

Bassanio : 

Be assured you may. 

SJiylock : 

I will be assured I may; and that I may be assured I will be- 
think me. May I speak with Antonio?" 

While they are talking, Antonio approaches and Bas- 
sanio says to Shylock: "Here is Antonio." Shakespeare 
presents Shylock as a character study, and I want you to 



mark this because it gives you a clue as to his requiring 
Antonio to be bound on a single bond. 

Shy lock (aside) : 

"How like a fawning publican lie looks. 
I hate him for he is a Christian ; 
But more, for that, in low simplicity. 
He lends out money gratis, and brings down 
The rate of usance here with us in Venice. 
If I can catch him once upon the hip 
I will feed fat the ancient grudge I bear him." 

In substance, he says, "I have a personal grievance 
against Antonio, the reason being .that Antonio is willing 
to lend without interest and ruins my business." 

Then Bassanio says: 

"Shylock, do you hear?" 

Shylock : 

"I am debating of my present store. 
And, by the near guess of my memory, 
I cannot instantly raise up the gross 
Of full three thousand ducats. 

Antonio : 

Shylock, although I neither lend or borrow 
By taking nor by giving of excess, 
Yet to supply the ripe wants of my friend, 
I'll break a custom." 

Now, there is distinct notice from Antonio directly to 
Shylock: He says, "For the ripe wants of my friend, 
Bassanio, I will break my custom and I will borrow." And 
he asks Bassanio in Shylock's presence whether Shylock 
knows how much Bassanio requires, for he asks, "Is he 
yet possess'd how much ye would?" This is very important, 
because in tracing the relationship of the parties you must 
find that Shylock had notice of the fact that Bassanio was 
the real debtor, and that Antonio was simply stepping in 



to oblige his friend. It is Shylock, not Bassanio, who 
answers the question, for Shylock says, "Ay, ay, three thou- 
sand ducats." His knowledge of the amount was derived 
from Bassanio. 

Antonio : 

And for three months. 

Shylock : 

I had forgot, — three months ; you told me so, 

Well then, your bond ; and, let me see. 

But hear you: 

Methought you said, you neither lend nor borrow 

Upon advantage. 

Antonio : 

I do never use it." 

Then follows a conversation as to interest, and Antonio 
proposes a joint bond in the words : "Well, Shylock, shall 
we be beholding to you"? Then follows that extraordinary 
passage, from a literary point of view, in which Shylock 
charges Antonio with bitterness of the rating of Shylock 
by Antonio on the Rialto and the spitting on his Jewish 
gaberdine, and finally Shylock, spurning a joint bond, says 
to Antonio: 

"Go with me to a notary; seal me there 
Your single bond." 

Mark those words: "Your single bond" — when I first 
read that expression, I thought that it should be taken 
in the sense of an absolute obligation. We lawyers know 
that a single bond is one where no condition is attached 
which, if performed, would work out a release or discharge 
of the debt. But I had to abandon that thought, because 
immediately Shylock talks about a condition: 



"Go with me to a notary ; seal rue there 

Your single bond : and, in a merry sport, 

If you repay me not on such a day, 

In such a place, such sum, or sums, as are 

Express'd in the condition, let the forfeit 

Be nominated for an equal pound 

Of your fair flesh, to be cut off and taken 

In what part of your body pleaseth me." 

Now you see that Shylock, in using that term "single 
bond," meant that Antonio should be bound alone, and that 
it should not be the joint bond of Bassanio and Antonio. 
He wanted to get Antonio alone, so that he could wreak his 
vengeance and his spite upon him. And he says: 

"Let the forfeit 
Be nominated for an equal pound 
Of your fair flesh, to be cut off and taken 
In what part of your body pleaseth me." 

Antonio says: 

I'll seal such a bond 

And say there is much kindness in the Jew. 

Bassanio exclaims : 

"You shall not seal to such a bond for me." 

There is a second notice to Shylock that it is for Bassanio 
that Antonio is binding himself. 

Bassanio says : 

"You shall not seal such a bond for me : 
I'll rather dwell in my necessity. 

Antonio : 

Why, fear not, man ; I will not forfeit it. 
Within these two months, that's a month before 
This bond expires. I do expect return 
Of thrice three time the value of this bond." 

Instantly Shylock becomes satirical, for he says: 



"O fattier Abraham, what these Christians are." 

Antonio replies : 

"Yes. Shylock, I will seal unto this bond. 

Shylock rejoins : 

"Then meet me forthwith at the notary's 
Give him direction for this merry bond, 
And I will go and purse the ducats straight; 
See to my house, left in the fearful guard 
Of an unthrifty knave, and presently 
I will be with you." 

It is beyond dispute then that Shylock knew that Bas- 
sanio was the real borrower. This should be borne in mind 
when we reach the point of the refusal by Shylock of the 
tender of the money when made by Bassanio, nominally in 
discharge of Antonio's bond, but actually in payment of 
his own debt. 

We will pass over the intervening scenes where Shylock, 
going to his home, finds that his daughter, Jessica, has 
eloped with Lorenzo, that she has taken away valuable 
ancestral rings and a large sum of money. The shock has 
worked him up into a frenzy — the loss of his money, the 
loss of his daughter, and the loss of his jewelry — and that 
heats his rage to the boiling point. Some time elapses, and 
this conversation takes place between Portia and Bassanio : 

Portia : 

'What sum does he owe the Jew?. 

Bassanio : 

For me three thousand ducats. 

Portia : 

What, no more? 

Pay him six thousand and deface the bond ; 

Double six thousand, and then treble that, 

Before a friend of this description 

Shall lose a hair through Bassanio's fault. 



First go with me to church and call me wife. 
And then away to Venice to your friend ; 
For never shall you lie by Portia's side 
With an unquiet soul." 

She says in effect: "Bassanio, you can have all the 
money you want in order to relieve your friend." 

Before Bassanio can return to Venice the time limit 
on the bond has expired and Antonio has been taken into 
custody. In Scene III of Act III we have Shylock enter- 
ing with Antonio and the gaoler. 

Shylock says : 

''Gaoler, look to him: tell me not of mercy; 
This is the fool that lent out money gratis; 
Gaoler, look to him. 

Antonio : 

Hear me yet. good Shylock. 

Shylock : 

I'll have my bond ; speak not against my bond : 
I have sworn an oath that I will have my bond. 
Thou call'dst me dog before thou hadst a cause; 
But, since I am a dog, beware my fangs : 
The duke shall grant me justice. 

Antonio : 

I pray thee, hear me speak. 

Shylock : 

I'll have my bond; I will not hear thee speak: 
I'll have my bond, and therefore speak no more. 
I'll not be made a soft and dull-eyed fool 
To shake the head, relent, and sigh and yield 
To Christian intercessors. Follow not; 
I'll have no speaking. I will have my bond. 

Antonio : 

Let him alone; 

I'll follow him no more with bootless prayers. 

He seeks my life; his reason well I know. 

I oft delivered from his forfeitures 

Many that have at times made moan to me; 

Therefore he hates me." 



Now, mark that. Antonio realizes that Shylock hated 
him because he, Antonio, had frequently by payment of 
the money for some unfortunate debtor delivered those 
debtors from a forfeiture; therefore Shylock, on Shakes- 
peare's own showing, was familiar with the facts not only 
that a tender could be made by a person other than the 
nominal debtor and the bond discharged, but that he him- 
self had actually accepted such tenders from Antonio. But 
a new and an untenable point is introduced; that Shylock 
could break the custom between the parties, by the re- 
jection of a tender and insistence on forfeiture, for he 
could not consistently deny that the tender subsequently 
made by Bassanio before Portia as a judge, would not 
accomplish the same result as a tender by Antonio for 
others, which he had accepted on previous occasions. 

Then comes the scene before the Duke, seated on the 
bench in open court. Bassanio appears, Antonio appears 
and Bassanio makes the tender to Shylock. The tender be- 
ing refused, Bassanio doubles it. 

Bassanio : 

"For tby three thousand ducats, here is six — 

Shylock : 

If every ducat in six thousand ducats 

Were in six parts, and every part a ducat, 

I would not draw them; I would have my bond." 

The Duke, instead of perceiving that the condition of 
the bond, which ran in the amount of the real debt, would 
avoid the fleshy penalty, is staggered and feebly exclaims: 

Duke: 

"How shalt thou hope for mercy, rendering none." 

Then enters Portia, as amicus curiae, in the part of a 
young doctor of the law. Of course her identity is not 



known. She is accepted as one learned in the law, and 
most readers of the play are charmed by her displays of 
learning and of logic. In truth, she displays a sad lack of 
both. Portia turns to Shylock and says: 

' . . « 

"Is your name Shylock? 

Shylock : 

Shylock, is my name. 

Portia : 

Of a strange nature is the suit you follow; 
Yet in such rule that the Venetian law 
Cannot impugn you as you do proceed. 
You stand within his danger, do you not V" 

Then she turns to Antonio and says, "Do you confess 
the bond?" and Antonio says, "I do." Now, at that time 
the defendant could not be put on the stand and asked to 
admit his bond with no previous proof of the signature. 
Portia violated the law of that day by saying, after the 
tender of the money had been refused in her presence, "Do 
you confess the bond?" and Antonio replied, "Yes, I do." 
That was a violation of his rights. Then Portia says: 
"Then must the Jew be merciful," and she reminds him 
that 

"The quality of mercy is not strain'd, 
It droppeth as the gentle rain from heaven 
Upon the place beneath/' 

This exquisite appeal falls on deaf ears and a hardened 
heart, and Portia, having extorted from the defendant by 
an illegal question a confession of the bond, asks of Shy- 
lock, "Is he not able to discharge the money?" Bassanio 
instantly leaped forward and said, "Yes; here, I tender it 
for hiim in open court." Now, that was a wholly foolish, 
and wholly irrelevant question of Portia's, if the tender was 



not to be effectual. To ask a man whether there is to be a 
tender when you are about to overrule it, is to indulge in a 
meaningless artifice which throws the record out of shape. 
Bassanio in his agitation says: 

"Yes, here I tender it for him in the court; 
Yea, twice the sum ; if that will not suffice, 
I will be bound to pay it ten times o'er. 
On forfeit of my hands, my head, my heart. 

Portia : 

It must not be. There is no power in Venice 

Can alter a decree established. 

'Twill be recorded for a precedent, 

And many an effort by the same example 

Will rush into the state. It cannot be." 

This is strange legal logic. The tender ought in law 
to have been sustained. But, being refused, the refusal 
is justified by an appeal to precedent, and the precedents 
were all the other way; as well as the custom between the 
parties. 

But Shylock, thinking that the judge was with him, 
joyously exclaims: 

"A Daniel come to judgment ! yea, a Daniel ! 
O wise young judge, how I do honour thee ! 

Portia then asks for oyer of the bond : 

"I pray you, let me look upon the bond. 

Shylock : 

Here 'tis, most reverend doctor ; here it is. 

Portia : 

Here's thrice thy money offered thee." 

Here she wobbles, by intimating that she might sustain 
the tender which she had just overruled. Now, how would 



you have drawn that bond ? The court, having craved 
oyer, the bond is before us. We all know that in order to 
impose a penalty, which is remitted of course in case of 
performance of the condition, we would have been obliged 
in the first part of the bond to bind Antonio to Shylock in 
the sum of six thousand ducats, but the condition of the 
obligation would have been such that if at the expiration 
of three months after date three thousand ducats were 
paid, then the obligation would be void and of no effect; 
otherwise to be of full force and virtrue. This was the law 
of Shakespeare's time as well as of our own. But instead 
of putting in double the amount of the debt as a penalty, 
Antonio was bound in the sum of three thousand ducats, 
on condition that if on the day named the three thousand 
ducats were not paid, then Shylock had the right to cut a 
pound of flesh from that part of Antonio's body nearest 
the heart, as he saw fit, and the illegality of the obligation 
would have been apparent on the face of the writing. "Why 
this bond is forfeit," says Portia. Why? The money in 
thrice the amount was lying in front of her. Instead of 
taking the position either that the money was there and 
must be accepted, or that the bond contained an illegal 
condition, contrary to the policy of the law, because plainly 
involving the loss of human life and was therefore abso- 
lutely void, she affirmed the validity of it. 
Then she plead with him to be merciful : 

"Take thrice thy money; bid rue tear the bond." 

Shylock says: 

"When it is paid according to the tenon r. * * * 
You know the law, your exposition 
Hath been most sound. * * * 
I stay here on my bond. 



Portia {turning to Antonio) : 
"Why then there it is: 

You must prepare your bosom for the knife. * * 
Have by some surgeon, Shylock, on your charge. 
To stop his wounds, lest he do bleed to death." 

There she saw at once the essence of the illegality. 

Shylock says : - 

"Is it so nominated in the bond that I should have a surgeon to 
stop his wounds?" 

Portia : 

It is not so expressed; but what of that? 
'Twere'good of you to do so much for charity. 

Shylock : 

I cannot find it ; 'tis not in the bond." 

Now notwithstanding her effort to stretch the language 
of the bond by making it cover surgeon's services, she is 
about to hold him to the strict letter, not of the bond, but 
of the condition, irrespective of the law, and she says : 

"A pound of that same merchant's flesh is thine; 
The court awards it, and the law doth give it. 

Shylock : 

Most rightful judge! 

Portia : 

And you must cut this flesh from off his breast; 
The law allows it and the court awards it. 

Shylock : 

Most learned judge A sentence Come, prepare!" 

Then Portia juggles nimbly: 

"Tarry a little; there is something else. 
This bond doth give thee no jot of blood; 
The words expressly are 'a pound of flesh' ; 
Take then thy bond, take thou one pound of flesh ; 
But in the cutting of it, if thou dost shed 
One drop of Christian blood, thy lands and goods 
Are, by the laws of Venice, confiscate 
Unto the state of Venice." 



Now, that is an absurd construction. If a man sold 
another a watermelon, and then said that if the purchaser 
cut into it and spilled any of the juice or any of the seeds 
spurted out, he was to forfeit his land and goods, you can 
easily see that it would be held that all the incidents and in- 
evitable consequences of ownership that naturally would go 
with it would be lost. She had sustained the legality of the 
bond, mark you, and the shedding of blood was an inevitable 
consequence that must follow. To escape that dilemma she 
put a forced construction on it, and while she would not 
allow a natural implication to follow, yet in sustaining the 
bond she had practically assented to causing the death of 
another. It was her womanhood and not her logic that 
revolted. 

Bassanio, finding his friend dn dire peril, burst out 
again : "Here is the money." Portia waived it aside. Now 
I want to know why ; if at the outset Bassanio went to Shy- 
lock, and Shylock recognized him as the principal debtor 
and that Antonio was simply accommodating him, why 
would not the tender of the full amount of the debt, or even 
double or treble the amount, have been a perfectly good 
tender to discharge the debt? Or, if you put it the other 
way, and say that Bassanio was simply the agent of Antonio 
to negotiate the loan with Shylock, why would he not be a 
perfectly good agent for the debtor in making the tender 
in discharge of the debt? So again you have a contradic- 
tion in Portia's law. 

Portia : 

"Therefore prepare thee to cut off the flesh. 
Shed thou no blood ; nor cut thou less, nor more ; 
But just a pound of flesh ; if thou take'st more, 
... Or less than just a pound, be it so much 

As makes it light or heavy, in the substance. 



Or the division of the twentieth part 

Of one poor scruple, nay, if the scale do turn 

But in the estimation of a hair, 

Thou diest and all thy goods are confiscate." • 

Now, judgment of death was never pronounced in Eng- 
land, in Venice, or anywhere else, under such a state of 
facts as that. Poor Shylock, torn with perplexity, says, 
"Give me my principal and let me go." Instead of giving 
the Jew the money to which he was entitled, Portia now 
sanctions robbery. 

Portia says : 

"He hath refused it in the open court ; 
He shall have merely justice and his bond." * * 

Shylock : 

Shall I not have barely my principal? 

Portia : ' 

Thou shalt have nothing but the forfeiture. 
To be so taken at thy peril, Jew. 

Shylock : 

Why, then the devil give him good of it ! 
I'll stay no longer question. 

Then Portia says: 

"Tarry, Jew ; 
The law hath yet another hold on you. 
It is enacted in the laws of Venice, 
If it be proved against an alien 
That by direct or indirect attempts, 
He seek the life of any citizen, 
The party 'gainst the which he doth contrive 
Shall seize one half his goods;" 

Now, if that was a good reason at that stage of the case, 
it was a perfectly good reason at the outset. It was a good 
reason against the penalty in the bond ; it was a very bad 
reason for despoiling the money lender. 



Portia says : ''Down therefore and beg mercy of the 
duke." 

Gratiano then begins to tease Shylock, and the duke 
says: 

"I pardon thee tby life before thou ask it: 
For half thy wealth, it is Antonio's; 
The other half conies to the general state. 
Which humbleness may drive into a fine." 

Now, how could they strip Shylock of all he possessed 
in the effort to collect the debt after they had pronounced 
the bond legal and that he was not obliged to accept the 
tender ? 

Shylock, then finding that half his fortune was to go to 
Antonio and half to the state, said : 

•"Nay, take my life and all; pardon not that: 
You take my house when you do take the prop 
That doth sustain my house: you take my life 
When you do take the means whereby I live." 

Then Antonio interposes and says : 

"So please my lord the duke, and all the court. 
To quit the fine for one half of his goods, 
I am content ; so he will let me have 
The other half in use. to render it, 
Upon his death, unto the gentleman 
That lately stole his daughter ; 
Two things provided more, that, for this favour. 
He presently become a Christian : 
The other, that he do record a gift, 
Here in the court, of all he dies posses' d 
Fnto his son Lorenzo, and his daughter." 

That is a pretty gift that a man is forced to make under 
that treble sort of duress, confiscation of his goods or the 
forfeiture of his life and the renunciation of his religion. A 
gift is necessarily a voluntary disposition of property. 

The duke then again turns to him and says : 



"'He shall do this, or else I do recant 
The pardon that I lately pronounced here. 

Portia : 

Art thou contented Jew? What dost thou say? 

Shylock : 

I am content." 

Then Portia says: 

"Clerk, draw a deed of gift. 
Shylock : 

I pray you, give me leave to go from hence; 
I am not well." 

That is not a surprising confession of his feelings. He 
adds : 

"Send the deed after me, 
And I will sign it." 

What Chancellor would have allowed that deed to stand? 
Plainly it would be the fruit of coercion. 

Just a few words in conclusion. The whole play is a 
travesty upon justice, not English justice alone, but justice 
anywhere. It cannot be explained by any peculiarity in the 
law of Venice. The ancient Roman law allowed a creditor 
to cut up the body of his debtor, and had it remained in 
force Shylock would have been within his rights. 
The Jew who is so mercilessly exposed to v hatred 
and contempt throughout the play, becomes in the 
end less despicable than the Christians who bullied and 
terrorized him and finally robbed him. Some weeks ago I 
noticed that there had been a decision by some judge in 
Chicago that Lord Bacon was the author of Shakespeare's 
plays. Lord Bacon was a great lawyer, and if that Chicago 
judge were called on to sustain a conviction of Lord Bacon 



for writing this play, I would like to know on what grounds 
ne would decide it. There are two reasons for my query. 
Lord Bacon, great lawyer as he was unquestionably, great 
scientific man, great statesman, and great philosopher, was 
at the same time the only man who in. those days was the 
rival of Lord Coke in the law. He could not, without a 
complete intellectual abandonment of his own legal learn- 
ing, his own mental integrity, and everything that a lawyer 
would hold sacred as principles of justice and of law, have 
written that play. It would have involved a complete moral 
and mental abnegation of himself; it would have been an 
impossibility, because we all know that men, whenever they 
exert their intellectual faculties, cannot stifle their own con- 
victions, and also their own professional training without 
self betrayal. But there is a special reason, more important 
than this. We of the present day, are entirely familiar 
with the jurisdiction in chancery to restrain by injunction 
the execution of any decree obtained at law which is illegal 
or contrary to public policy. In the days of Shakespeare 
that jurisdiction had just been established. The Lord 
Chancellor prior to Lord Bacon's occupying the woolsack, 
in the midst of Shakespeare's period, was Sir Thomas Eger- 
ton, afterwards Lord Ellesmere, and there had been a con- 
troversy raging as to whether the chancellor had juris- 
diction to restrain the execution of a judgment obtained at 
law which was vitiated by fraud, or which wore on its face 
an illegal consideration. The parties to that controversy, 
which shook Westminster Hall, were Coke and Ellesmere. 
Into that great fight Lord Bacon threw himself. Embittered 
by his hatred of, and jealous enmity to Coke, he backed the 
Chancellor, and the Chancellor won. Therefore that which 
is one of the most brilliant triumphs of Bacon's legal career 



would have been completely abandoned. The conclusion 
that Bacon wrote that play is absurd. 

I thank you for your very close attention to what I have 
said. I have run into greater length than I had intended. 



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